Current through Register Vol. XLI, No. 50, December 13, 2024
Section 157-1-3 - Hearing Procedures3.1. Purpose. The purpose of this section is to provide standards of conduct for all hearings by and before the Commissioner of Highways.3.2. Scope. This section applies to hearings conducted by the Commissioner of Highways concerning the rights of citizens which may be adversely and directly affected by an action of the Commissioner except as provided in §3.2.a of this rule. A hearing may be initiated by the Commissioner or a citizen.3.2.a. This section does not apply to claims heard and determined by the West Virginia Legislative Claims Commission. Nor does it apply to hearings and public meetings held by the Commissioner for purposes of acquiring information, making findings, and determining courses of action and procedure relative to the location of any road or proposed road, or to the advancement and improvement of the state road system.3.2.b. This section will be applied in harmony with applicable state statutes and in case of conflict, state statutes shall prevail.3.3. Records Pertaining to Hearings. The Commissioner of the Division of Highways or his or her designee shall be the presiding officer and shall be responsible for all administrative and clerical duties relating to hearings and for all records and pleadings pertaining to hearings. The presiding officer shall receive all applications, petitions, protests, claims or other written documents relating to a hearing before the Division of Highways. The presiding officer will, upon request, advise any party as to the form or condition of any paper to be filed in any proceeding before the Commissioner. He or she will maintain a docket book in which shall be entered each formal case on complaint, claim, application or petition, investigation, or protest, with a file number corresponding to the number of the case together with brief chronological notations of the proceedings had in the case. He or she shall also maintain the Commissioner's Order Book, in which shall be recorded, on the day of their filing, any orders made or passed by the Commissioner of Highways in the performance of his or her statutory duties. 3.3.a. All papers or documents, of whatever character, which are received or filed with the Division of Highways, shall be stamped showing the date of receipt or filing thereof.3.4. Complaints, Claims, Applications, Petitions, Protests. Claims, complaints, or applications may be either informal or formal.3.4.a. Informal Pleadings and Procedures. Informal claims, complaints or applications may be made by letter or other writing addressed to the West Virginia Department of Transportation, Commissioner of Highways, Building 5, Room A109, 1900 Kanawha Boulevard, East, Charleston, West Virginia 25305-0430, or the office of the District Manager of the affected district. Matters thus presented, if their nature warrants, may be negotiated and settled by the Commissioner of Highways, the District Manager, or some other duly authorized employee, without formal hearings. If the matters cannot be resolved satisfactorily to all parties, the proceeding is held to be without prejudice to the right of any party to file and prosecute a formal claim, complaint or application, whereupon the informal proceeding will be discontinued. No form of informal complaint, claim or application is prescribed, but the letter or other writing must contain a clear and concise statement of the facts and the specific relief sought. The names of all parties affected or involved shall be stated in full, and the address of each party, with the name and address of his or her attorney, if any, stated therein or thereon.3.4.b. Formal Pleadings. All formal complaints, claims, applications, petitions and protests shall be verified and addressed to the Commissioner of Highways. Such papers shall set forth plainly and distinctly the grounds for the relief sought or reasons for protest and should be written as fully and completely to advise the Commissioner of Highways of the nature of the grievances or alleged violations of law.3.4.b.1. The names of all parties affected or involved shall be stated in full and the address of each party, with the name and address of his or her attorney, if any.3.4.b.2. Two (2) copies of all papers shall be filed with the presiding officer.3.5. Answers or Responsive Pleadings. Within 30 days after receipt of a formal pleading or protest, the Division of Highways or the Division Director or District Manager affected shall file an answer to such pleading or protest. The answer shall fully and plainly inform the parties involved of the nature of the Commissioner's defense or reason for the decision or action upon the particular matter involved. The Division of Highways shall serve the answer upon the parties either in person or by registered or certified mail, facsimile or email to the party or his or her attorney.3.6. Stipulations or Agreed Facts. The parties to any proceeding may, by stipulation in writing filed with the presiding officer, agree upon the facts, or any portion thereof, involved in the controversy, which stipulation shall be recorded and used at the hearing.3.7. Hearings; Notices; Evidence. When issue is joined by the service of an answer on the complainant upon any matter for which the Commissioner is required by law to hold a hearing or shall pursuant to this rule determine that a hearing shall be held, the presiding officer will assign a time and place for the hearing, which will be at the Division headquarters in the City of Charleston or elsewhere in the state at the discretion of the Commissioner. The hearing will be held by the presiding officer designated to hold hearings. 3.7.a. Notices. The presiding officer shall give all parties not less than 10 days' notice of the time and place of hearing, which may be served upon the parties by personal delivery, or by registered or certified mail, electronic means, or in any manner by which a notice may be served at law.3.7.b. Evidence. The parties must prove the existence of the facts as alleged in their pleadings. The presiding officer will hear such proof of facts as he or she may deem proper and reasonable, and may make such investigation and enter such order as the facts justify and the circumstances may require. 3.7.b.1. The presiding officer shall not be bound by common law or statutory rules of evidence in conducting hearings. He or she will admit all testimony or other evidence having reasonable probative value, but will exclude immaterial, irrelevant or unduly repetitious testimony. He or she shall, however, give effect to any rules of privilege recognized by the law of this state.3.7.b.2. All evidence, including records and documents in the possession of the Commissioner of Highways may be duly offered and made a part of the record in a case. Every party to the proceeding shall be afforded adequate opportunity to rebut or offer countervailing evidence.3.7.b.3. The presiding officer may take official notice of any generally recognized fact or any established technical or scientific fact; but parties shall be notified either before or during the hearing or by full reference in preliminary reports or otherwise, of the facts so noticed, and they shall be afforded an opportunity to contest the validity thereof.3.7.b.4. Witnesses shall be examined under oath in the manner and form, and in the order designated by the presiding officer. If the presiding officer so directs, or any party in interest so requests, the testimony given shall be reduced to writing or such other form of recording as the presiding officer may direct and preserved in the Commissioner's files. Should any party in interest request a transcript of the proceedings or should the presiding officer direct that a transcript be prepared, then sufficient copies shall be made and delivered to each party making such request, and at the expense of the person making the request.3.8. Depositions. The testimony of any witness may be taken by deposition at the instance of a party, in any proceeding or investigation at any time after the same is at issue, with the consent of the Commissioner. The presiding officer may, of his or her own motion, order testimony to be taken by deposition in any proceeding or investigation pending before him or her, at any stage of such proceeding or investigation.3.9. Subpoenas. Subpoenas requiring the attendance of witnesses, from any place in the State of West Virginia, at any designated place of hearing before the presiding officer for the purpose of taking the testimony of such witness, and subpoenas requiring the production of documentary evidence, will be issued upon the application of either party, by the presiding officer.3.10. Decisions. Every decision of the presiding officer in a contested case shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each contested issue of fact without recital of evidence.3.11. Service of Notices, Subpoenas and Decisions. All notices shall be served by personal delivery or by registered or certified mail or by electronic means to each party to the proceeding or to his or her attorney of record, or as provided by law. Every decision when made by the presiding officer shall be recorded in the Commissioner's Order Book and a copy served forthwith by personal delivery or by registered or certified mail or electronic means to each adversary party to the proceeding or to his or her attorney or record.